The 1982 Convention on the Law of the Sea, an international treaty to which the United States is not a party, holds a key to critical economic and national security interests of the country.
The Senate Foreign Relations Committee is currently holding hearings on ratification.
The treaty established rules for navigation in international waters and a regime to determine mineral and other rights beneath the ocean floor. It has already been ratified by 161 countries and the European Union, including all the permanent members of the Security Council (except for the U.S.): Russia, China, Britain, and France.
First, the economic interests: With the Arctic Ocean melting, the Arctic icecap reduced to nearly half the size it was 50 years ago, and the Northwest Passage opened for shipping, there is a scramble for its natural resource deposits among the five Arctic powers: Russia, Denmark, Canada, Norway, and the U.S. Valid assertion of claims to these resources is based on the extension of a country’s continental shelf, only possible under the rules of the treaty. Although the “extended continental shelf” of the U.S. extends more than 600 miles into the Arctic Ocean off the coast of Alaska and covers an area twice the size of California, the U.S. sits on the sideline while other countries are staking their claims to vast resources.
Second, the national security interests: The treaty established firm rules for freedom of navigation and overflight, and with the U.S. being the dominant naval power, the convention gives it the advantage “to freely navigate on, over, and under the world’s oceans.” Under the treaty, the U.S. could freely enter the territorial sea of any other party and conduct offshore military operations outside 12 nautical miles from the shoreline without seeking permission or even providing notice or reports to the country.
In 2009, China confronted the U.S. about its ships illegally collecting information in China’s Exclusive Economic Zone, which extends to 200 miles offshore. As a party to the treaty, the U.S. would have the right to do so. Thus, the treaty enhances the U.S. naval flexibility, a major reason why the U.S. military endorses ratification.
The Joint Chiefs chairman, Gen. Martin Dempsey, testified before the Senate Foreign Relations Committee in late May, enthusiastically supporting the treaty’s ratification. He said that the military is firmly behind swift ratification because there are concrete benefits for U.S. security and for American leadership in maritime affairs. Committee chair John Kerry, D-Mass., is leading the ratification effort. Along with the military leaders, Presidents George H.W. Bush, Bill Clinton and George W. Bush have all endorsed it, while U.N. skeptics — including Sen. James Imhofe, R-Okla. — staunchly oppose it as a limitation on U.S. sovereignty.
Secretary of State Hillary Clinton and Defense Secretary Leon Panetta have spoken strongly in favor of ratification. Mocking the skeptics, Clinton said at the U.S. Senate hearing on the treaty in May that she had “heard we should not join this convention because … ‘it’s a U.N. treaty,’ and of course that means the black helicopters are on their way.”
Influential business leaders have testified that expanding the definition of the outer continental shelf, which the treaty allows, would significantly increase the potential scope of U.S. domestic energy production. For example, American Petroleum Institute President and CEO Jack Gerard said, “It would secure an additional 4.1 million square miles (of ocean floor) under U.S. jurisdiction.”
The U.S. needs to act quickly to allow American companies to compete with foreign firms, added Kerry, because “they want and need certainty in order to invest the billions of dollars required to develop the extended shelf, especially in the Arctic, where the Chinese and Russians are already laying claims.”
U.S. Chamber of Commerce president and CEO Thomas Donohue testified that the benefits of ratification outweigh any criticism, as the treaty is “critical to America’s global leadership.” He added, “The U.S. has more than any country to gain or to lose. The treaty is not perfect. It’ll be changed like all treaties are, but we had better be sitting at the table.”
Ved P. Nanda (vnanda@law.du. edu) is Thompson G. Marsh Professor of Law and director of the International Law Program at the University of Denver Sturm College of Law.
